April 20, 2015
Attorney-General George Brandis is considering a recommendation from the House of Representatives Standing Committee on Social Policy and Legal Affairs that there be an inquiry into the regulatory and legislative aspects of surrogacy.
Infertility is the cause of a lot of pain for many Australian couples. You would have to be very hard-hearted not to sympathise with couples who, because of medical issues or other circumstances, are not able to have children. I truly sympathise with them and understand why some seek surrogacy as a way to circumvent infertility. They want a child to love.
For very many children, adoption is also a great blessing and benefit for which they will always be grateful.
However, surrogacy causes difficulties for children and for the surrogate mothers who bear them. Some people emphasise the difficulties for the child; others emphasise the difficulties for women who become surrogates.
Surrogacy makes it very difficult for a child to understand their origins and identity. Our family links are an important part of who we are. Surrogacy puts a question mark over the child’s parentage. As many as three women may share the role of “mother”: a woman who donates the egg, a woman who carries the child to birth, a woman who raises the child. And the child’s biological father may be merely the donor of the sperm.
Surrogacy intentionally violates a child’s right to be brought up – if it is possible – by their natural parents. Surrogacy intentionally breaks the gestational link between the child and her natural mother. A deeply ingrained bond is created between mother and child by nine months of sacrifice, love and care. For the first nine months, it is the mother’s voice the child hears. Having been intimately connected with her body, the child will always have unique physical and psychological connections with the woman who gave birth to them. For this reason, it is now widely recognised that adopted children have the right to know who their biological parents are, if that is possible.
Surrogacy repeats many of the mistakes we Australians have made in the past. Children born of anonymous sperm donation – and the adults they become – come to mind. They so often long to know and to have a relationship with their natural parents. They tell us that they grieve over the loss of relationship with their natural siblings.
Overseas, where “commercial” surrogacy is allowed, there is a clear power disparity between the relatively affluent commissioning couples and relatively poor women who act as surrogates. Surrogate mothers must work hard to ensure that they do not form a bond with the child during pregnancy. Of course surrogacy is not ordinary work: it involves the woman’s whole body and her whole life.
The Baby Gammy case was significant because it revealed the workings of the market: the child seems to have been rejected because – as a product – he did not come up to expectations.
However, so-called “altruistic” surrogacy, though it removes that commercial element, is ethically troubling in other ways. Where relatives are involved, as is often the case, a potential surrogate may feel she has an obligation to help, and the conflicted nature of the child’s identity within the family will persist over a lifetime. Identity is not something that can be simply chosen.
The Immigration Department receives about 250 citizenship applications a year on behalf of children born overseas as a result of “commercial” surrogacy. It is being asked to deal with situations presented as a fait accompli: the child has been born and the surrogate mother has agreed to hand it over. Our citizenship laws are not made to deal with this difficult problem.
However, rather than revising our laws so as to facilitate arrangements which intentionally sever the bond between mother and child, we need to consider whether it really is possible to enact laws which, on the one hand, are just to the children born of surrogacy and to their surrogate mothers and, on the other, are compassionate to infertile couples. That may be a bridge too far.
Bernadette Tobin is director of the Plunkett Centre for Ethics at St Vincent’s Hospital in Sydney and Reader in Philosophy at Australian Catholic University.